Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act

The framers of the U.S. Constitution wrote the Elections Clause to address concerns that the states would fail to call congressional elections and weaken the already fragile new government. The Clause is a delegation of sovereignty from the states to the federal government because, although states select the “time, place, and manner of elections,” Congress retains final policymaking authority over federal elections through its veto power or ability to “alter or modify” state electoral schemes. In essence, Congress’s veto power over state practices deprives states of the hallmark of sovereignty: final policymaking authority. But the Clause, which forms the basis of our electoral system, has largely been ignored in analyzing the constitutionality of federal legislation that modifies or alters state electoral practices.

In particular, the states’ lack of sovereignty over elections has not informed the Supreme Court’s analysis of section 5 of the Voting Rights Act of 1965. Recent case law has criticized section 5 on the grounds that it unduly interferes with state sovereignty by requiring states to preclear any change to their election laws with the federal government before the change can go into effect. To support its argument that the Act intrudes on state sovereignty, the Court has employed a federalism norm, which is a free-floating conception of the federal/state balance of power that is not tied to the constitutional text or structure. Using this norm, the Court has deferred to the states over the matter of elections under the guise of restoring the “original” balance of power between the states and the federal government in this area.

This presumption that the states’ authority over elections is sovereign represents a basic misunderstanding about the structure of our government. The constitutional text and structure give Congress sovereign authority over all state election laws that govern federal elections and implicate the constitutional right to vote, while states retain broad authority over federal elections and have, at best, limited sovereignty over practices that only implicate state elections.